The Right-Wing Assault

Since the election of President Reagan, a disciplined, carefully orchestrated and quite self-conscious effort by high-level Republican officials in the White House and the Senate has radically transformed the federal judiciary. For more than two decades, Republican leaders have had a clear agenda for the nation's courts: to reduce the powers of the federal government; to scale back the rights of those accused of crime; to strike down affirmative-action programs and campaign-finance laws; to diminish privacy rights, including the right to abortion; and to protect commercial interests, including commercial advertisers, from government regulation. They have sought judicial candidates who would interpret the Constitution and other federal statutes in a way that would promote this agenda. And their nominees have been appointed to the bench.

To a degree that has been insufficiently appreciated, and is in some ways barely believable, the contemporary federal courts are fundamentally different from the federal courts of just two decades ago. What was then in the center is now on the left; what was then in the far right is now in the center; what was then on the left no longer exists. Conservative thought itself has changed no less radically. In the 1960s and 1970s, principled conservatives were committed to a restrained and cautious federal judiciary. Their main targets included Roe v. Wade and Miranda v. Arizona, which they saw as unsupportable judicial interference with political decisions. They wanted courts to back off. But the goal has increasingly been to promote "movement judges" -- judges with no interest in judicial restraint and with real eagerness to strike down the acts of Congress and state governments. On the central issues of the day, many conservative judges seem to think that the Constitution should be interpreted to overlap with the latest Republican Party platform. (Sometimes they call this "strict construction.")

In transforming the federal judiciary, Presidents Ronald Reagan and George Bush Senior were critical figures, seeking to populate the bench with young judges committed to the preferred view of the Constitution. Many of their appointees remain active -- and will so remain for many years. But the effort to reshape the federal judiciary has not been limited to Republican presidents. Republican senators have been equally single-minded. Showing extraordinarily little respect for presidential prerogatives, right-wing senators did whatever they could to block President Clinton's judicial nominees. Sometimes the obstructionists justified their actions by labeling Clinton nominees, whatever the facts, as "liberal activists." Sometimes they offered no reasons at all and simply refused to schedule confirmation hearings. One result was that many moderate Clinton nominees received no serious consideration from the Republican-led Senate Committee on the Judiciary.

In contrast with their single-minded Republican counterparts, Democrats in the White House and the Senate have been astonishingly passive. To high-level Democrats, the composition of the federal judiciary has rarely been a major priority. Clinton chose two centrist justices, Ruth Bader Ginsburg and Stephen Breyer, whose views are far more cautious and moderate than those of such liberals as William Brennan and Thurgood Marshall. Ginsburg and Breyer are exceptionally distinguished choices (and, in my own view, their caution and moderation are entirely appropriate). But they cannot be counted as the Democratic counterparts to Justices Antonin Scalia and Clarence Thomas. And with a few prominent exceptions, including the nominations of Robert Bork and Thomas, Democratic senators have usually deferred to Republican presidents. Under Reagan and Bush Senior, immoderate "movement" judges have been confirmed to the lower courts without the slightest protest.

Judicial Robes, Political Swords

The result of this one-sided political battle is that America now has an ideologically reconstructed federal judiciary that has taken a strong stand, in many cases, against both Congress and the states. The Rehnquist Court has struck down at least 26 federal enactments since 1995 -- a record of activism against the national legislative branch. In terms of sheer numbers of invalidations of acts of Congress, the Rehnquist Court might well qualify as the all-time champion. Consider a few illustrations:

The Rehnquist Court has used the First Amendment to invalidate most forms of campaign-finance legislation -- with Scalia and Thomas suggesting that they would strike down almost all legislation limiting campaign contributions and expenditures.

The Rehnquist Court has ruled that Congress lacks the power to give citizens and taxpayers as such the right to sue to ensure enforcement of environmental laws.

The Rehnquist Court has thrown most affirmative-action programs into extremely serious question, raising the possibility that public employers and schools will not be able to operate such programs. Whatever the outcome of the University of Michigan affirmative-action cases currently before the Court, it is safe to predict that the federal judiciary will block most race-conscious efforts to diversify their institutions, even if those efforts are entirely voluntary.

The Rehnquist Court has interpreted regulatory protections extremely narrowly, often choosing the interpretation that gives as little as possible to victims of discrimination, pollution and other misconduct.

The Rehnquist Court has reinvigorated the commerce clause as a serious limitation on congressional power for the first time since the New Deal. As a result of the Court's invalidation of the Violence Against Women Act, a large number of federal statutes have been thrown into constitutional doubt. Several environmental statutes are in constitutional trouble.

The Rehnquist Court, departing from its own precedents, has sharply limited congressional authority to enforce the 14th Amendment. In the process, the Court has struck down key provisions of the Americans With Disabilities Act, the Religious Freedom Restoration Act and the Violence Against Women Act, all of which received overwhelming bipartisan support in Congress.

The Rehnquist Court has used the idea of state sovereign immunity to strike down a number of congressional enactments, including parts of the Age Discrimination in Employment Act and the Americans With Disabilities Act. In doing so, the Court has acknowledged that its decisions have no basis in the text of the Constitution.

What about the lower courts? Many people, including some Democrats, have urged that judges on those courts simply vote in accordance with "the law." In their view, it doesn't really matter whether appointees come from Democratic or Republican presidents. This claim might have been true in previous periods in American history. But because of the efforts of recent Republican presidents, the argument is ludicrous. My own studies show stunningly sharp differences between the votes of judges appointed by recent Republican presidents and the votes of judges appointed by recent Democratic presidents. Consider a few examples: Republican-appointed judges almost always vote to strike down campaign-finance laws, whereas Democratic-appointed judges usually vote to uphold those laws; Republican-appointed judges generally vote to strike down affirmative-action programs while Democratic-appointed judges overwhelmingly vote to uphold those programs; Democratic judges are much more likely to vote to strike down restrictions on the right to choose than Republican judges, who are far more likely to strike down an environmental regulation that has been challenged by industry in court.

Many defenders of right-wing judicial activism contend that they are really behaving neutrally. Often they say that they are simply following "originalism" -- an approach that interprets the Constitution in a way that fits with the original understandings of those who ratified it. Originalism is a principled and honorable position. Unfortunately, the current right-wing activists aren't practicing it. The original understanding of the 14th Amendment, passed during Reconstruction, strongly suggests that affirmative-action programs are acceptable. But because the right-wing activists on the bench and in the Department of Justice are on the warpath against affirmative action, they don't consult the original understanding when it doesn't suit them. In ruling that Congress lacks the power to allow citizens to sue to enforce the law, the Rehnquist Court said not a word about the original understanding, which indicates that Congress has exactly that power. Too often, the views of contemporary federal judges are closer to the Republican Party platform than to those of the framers.

The New Path of the Law

In a few months, the Supreme Court will rule on the constitutionality of affirmative-action programs at the University of Michigan. Thus far, the most remarkable aspect of the litigation is the position of President Bush's executive branch. According to the president, the Supreme Court should usually ban voluntary affirmative action at the national, state and local levels of government. Bush is requesting a breathtaking exercise in right-wing judicial activism -- one of the most breathtaking, in fact, in the nation's history.

There are many ironies here. Bush and his conservative supporters have said that they are committed to judicial restraint, interpretation of the Constitution as the framers understood it, respect for federalism and for local authority, and, of course, strict construction of our founding document. In the context of affirmative action, Bush is jettisoning all these ideals. He is telling the Supreme Court to embrace judicial activism in the name of a slogan -- "color blindness" -- that cannot be found in the Constitution or its history. So much for strict construction. He is also asking the Supreme Court to reject the educational judgments of countless institutions in many states. So much for federalism and local authority.

But the ironies go deeper still. When arguing before the Supreme Court, the Justice Department is the federal government's lawyer. Its institutional obligation is not to implement the current president's policies but to try to minimize constitutional restrictions on Congress and the executive branch, in order to ensure that the elected branches have some room to maneuver. Abandoning its historic role, Bush's Justice Department is asking the Supreme Court to tighten constitutional restrictions on Congress and the executive branch so as to give the political branches, both national and state, no room to maneuver. And while the Bush administration claims to favor increased flexibility for the private sector, its lawyers are undoubtedly aware that if the Supreme Court strikes down affirmative action at the University of Michigan, purely private universities will probably face identical legal restrictions under the civil-rights laws.

This story is important by itself, but much more may be on the way. If the judiciary's current tendencies are not monitored and exposed for what they are, they may go beyond the Rehnquist Court's relatively incremental decisions to far larger changes in American law. We could easily imagine a situation in which federal judges not only eliminate affirmative-action programs entirely but also:

strike down almost all campaign-finance reform;

invalidate parts of the Endangered Species Act and the Clean Water Act;

interpret the Second Amendment so as to reduce the power of Congress and the states to enact gun-control legislation;

elevate commercial advertising to the same status as political speech, thus preventing controls on commercials by tobacco companies (among others);

further reduce congressional power under the commerce clause and the 14th Amendment;

generally limit democratic efforts to prevent disabled people, women and the elderly from various forms of discrimination;

significantly extend the reach of the "takings" clause, thus limiting environmental and other regulatory legislation; and much more.

Does this seem fanciful? A decade ago it might have been the stuff of science fiction, but it is increasingly plausible. Consider a development that has received almost no public attention: In the 1970s and early 1980s, conservatives focused on the Warren Court as the symbol of illegitimate constitutional interpretation. Their basic goal was to repudiate the Warren Court and its legacy. But many people on the far right have become much more ambitious. Their target is no longer Earl Warren but Franklin Delano Roosevelt and the New Deal. First in private but increasingly in public, they are urging that the real Constitution is in exile, and that it is time for a restoration. A new narrative of American history has emerged, one that sees the constitutional system as functioning well, and as it was intended, until about 1936, when the Court is said to have capitulated to Roosevelt's "mob." In this view, the current task is to restore the Constitution in exile by repudiating the understandings of rights and institutions that have governed the nation for well over a half-century. Arguments to this effect are now being made in public presentations all over the nation -- sometimes by, and not just for, federal judges.

I do not suggest that the constitutional law of 2010 will look at all like the constitutional law of 1935. Courts move slowly; usually they respect their own precedents. But significant changes are continuing to occur. Amid those changes, what is most alarming is the large-scale shift in conservative commitments. I believe -- indeed, I argued in the first issue of this magazine 13 years ago [see "The Future of Constitutional Politics," TAP, Spring 1990] -- that in the 1960s and 1970s, conservative critics were right to object, on democratic grounds, to some of the Court's liberal decisions, including Roe v. Wade itself. They were right to say that the Court should be reluctant to wield ambiguous constitutional provisions as a kind of weapon against reasonable judgments from Congress and the states. But in the current period, President Bush and others are asking the Court to do exactly that. Right-wing activists even appear to have convinced themselves that, by remarkable coincidence, there is a close fit between their own political commitments and the Constitution itself. In a way, they're right: By appointing judges who see things their way, the fit is becoming closer every day.

Is there any possible response? It would be good to begin with a sustained objection by those who understand the problem. The nation is in the midst of a period of right-wing judicial activism, more extreme than any such period since the New Deal itself. A great deal has already happened, but much worse may be on the way unless far more people -- moderate and even conservative Republicans, as well as Democrats -- come to see what the nation stands to lose.

About the Author

Cass R. Sunstein is the Karl N. Llewellyn Distinguished Service Professor of Jurisprudence at the University of Chicago Law School and the author of more than a dozen books, including After the Rights Revolution, Designing Democracy and most recently, The Cost-Benefit State.